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COMMONWEALTH v. FINE (01/12/50)

January 12, 1950

COMMONWEALTH
v.
FINE



COUNSEL

David Kanner, Philadelphia, for appellant.

Kenneth D. Matthews, Assistant District Attorney, John H. Maurer, District Attorney, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Dithrich, Ross, Arnold and Fine, JJ.

Author: Ross

[ 166 Pa. Super. Page 111]

ROSS, Judge.

This is an appeal from a conviction of illegally assisting certain voters in Philadelphia in the general election of 1946. After his conviction by a jury, the defendant filed motions for arrest of judgment and a new trial. These motions were denied, sentence was duly imposed and this appeal followed.

Section 1220 of the Pennsylvania Election Code, 1937 P.L. 1333, 25 P.S. § 3060, provides in part as follows: 'No elector shall be allowed to occupy a voting compartment or voting machine booth already occupied by another, except when giving assistance as permitted by this act.' The requirements for receiving assistance in voting are set forth in Section 1218, 25 P.S. § 3058, which provides in part as follows: '(a) No voter shall be permitted to receive any assistance in voting at any primary or election, unless there is recorded upon his registration card his declaration that, because of illiteracy, he is unable to read the names on the ballot or on the voting machine labels, or that he has a physical disability which renders him unable to see or mark the ballot or operate the voting machine, or to enter the voting compartment or voting machine booth without assistance, the exact nature of such disability being recorded on such registration card, and unless the election officers are satisfied that he still suffers from the same disability. Before he shall be permitted to receive assistance, such voter shall stated distinctly and audibly under oath or affirmation, which shall be administered to him by the judge of election, the reason why he requires assistance.'

In support of his motion in arrest of judgment the defendant attacks the sufficiency of the indictment, which is as follows: 'Joseph Fine * * * on the fourth day of November * * * one thousand nine hundred and forty-six * * * in the twenty-first election district or division of the twentieth ward of the City of Philadelphia,

[ 166 Pa. Super. Page 112]

    at the general election * * * did then and there unlawfully assist a voter thereof, to wit, one Elmira Norris, in preparing the voting machine for voting, and who voted in said election district or division of said ward of said city, without the said Elmira Norris having had recorded upon her registration card her declaration that, because of illiteracy, she was unable to read the names on the voting machines, or that she * * * had a physical disability which rendered her unable to see or operate said voting machine without assistance and without * * * stating distinctly and audibly under oath or affirmation, administered to her by the judge of election the reason why she required assistance; contrary to the form of the Act of the General Assembly * * *.' Additional counts using the same language alleging that the defendant unlawfully assisted other named voters are included in the indictment.

The essential element of crime, unless otherwise declared by statute, is the intent to commit it, or the willfulness of it. Com. v. Junkin, 170 Pa. 194, 32 A. 617, 31 L.R.A. 124. 'Ordinarily intent is a necessary ingredient of a criminal offense, but there are well recognized exceptions to this rule, as respects acts made criminal by statute. The subject is treated in Greenleaf on Evidence (vol. 3, sec. 21) as follows: 'Ignorance or mistake of fact may in some cases be admitted as an excuse; as where a man intending to do a lawful act, does that which is unlawful. * * * This rule would seem to hold good in all cases when the act, if done knowingly, would be malum in se. But where a statute commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute, it seems, will not excuse its violation. * * *' Com. v. Liberty Products Co., 84 Pa. Super. 473, 475-476;

[ 166 Pa. Super. Page 113]

Com. v. Borek, 161 Pa. Super. 200, 203-204, 54 ...


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